We do not have jurisdiction to hear Kevcon’s challenge because it concerns a task order valued at less than $10 million. In this regard, the government estimate for the task order was $2.7 million, and Kevcon’s quoted price was $2.64 million. Request for Dismissal at 2.

In 1994, the Federal Acquisition Streamlining Act (FASA) barred protests concerning task or delivery orders issued under ID/IQ contracts, other than those challenging the scope, period, or maximum value of the underlying contract. See Pub. L. No. 103-355, 108 Stat. 3243, 3264 (1994) (codified in Titles 10 and 41 of the U.S. Code). The Fiscal Year (FY) 2008 National Defense Authorization Act (NDAA) amended FASA to grant GAO jurisdiction to hear protests concerning task or delivery orders valued at more than $10 million (in addition to those concerning scope, as discussed above). See Pub. L. No. 110-181, 122 Stat. 3, 237 (2008). The FY 2008 NDAA amendment to FASA also contained a sunset provision, which stated that the amended “subsection shall be in effect for three years.” Id.

As explained in our decision in Technatomy Corp., B-405130, June 14, 2011, 2011 CPD ¶ 107, the sunset provision of the FY 2008 NDAA took effect on May 27, 2011, with regard to procurements conducted under Title 41 of the U.S. Code. Despite this sunset, we concluded that, with respect to Title 41 procurements, the plain language of the FY 2008 NDAA resulted in the elimination of FASA bar on protests; consequently, our Office had jurisdiction to consider protests concerning task or delivery orders of any size. Id. at 4.

On December 31, 2011, the FY 2012 NDAA amended our Office’s jurisdiction, and effectively reinstated the FASA task or delivery order bar and the $10 million exception established under the FY 2008 NDAA. FY 2012 NDAA, Pub. L. 112–81 125 Stat. 1298, 1491 (2011). Specifically, section 813 of the FY 2012 NDAA amended the sunset provision of the FY 2008 NDAA, as follows:

Paragraph (3) of section 4106(f) of title 41, United States Code, is amended to read as follows:

“(3) EFFECTIVE PERIOD.--Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.”.

Id.

As a result of this amendment, the jurisdiction of our Office concerning task or delivery orders, under both Titles 10 and 41, returns to its status before May 27, 2011. Specifically, our Office has jurisdiction to hear protests concerning task or delivery orders issued under ID/IQ contracts only where: (1) the protest challenges the scope, period, or maximum value of the underlying contract; or (2) the order is valued at more than $10 million.

Kevcon argues that because the task order solicitation was issued prior to the reinstatement of the $10 million threshold by the FY 2012 NDAA, our Office has jurisdiction to hear this protest based on the analysis set forth in Technatomy. The protester’s reading of Technatomy is incorrect. In that case, we interpreted our jurisdiction to hear task or delivery order protests based on the filing date of the protest, rather than the date of the underlying procurement action. Technatomy Corp., supra, at 5-6.

In Standard Communications, Inc., B-406021, Jan. 24, 2012, 2012 CPD ¶ 51, we confirmed our view that the authority of this Office to hear a protest relates to the date when the protest was filed. Specifically, we held that although the enactment of the FY 2012 NDAA reinstated the $10 million threshold, we had jurisdiction to consider and issue a decision regarding a protest of a task order valued at less than $2 million because the protest had been filed before the enactment of the FY 2012 NDAA. Id. at 3.

Here, Kevcon’s protest was filed on February 13, 2012; on that date, the FY 2012 NDAA had taken effect. For this reason, our Office does not have jurisdiction to hear this protest because it concerns a task order valued at less than $10 million.  (Kevcon, Inc., B-406418, Mar 7, 2012)  (pdf)

The Competition in Contracting Act of 1984 (CICA) established GAO's statutory authority to hear bid protests concerning challenges to the terms of solicitations and the award or proposed award of contracts. See Pub. L. No. 98-369, 98 Stat. 1175 (1984) (codified at 31 U.S.C. sect. 3551 et seq. (2006)). Prior to 1994, the statutory authority of our Office under CICA did not distinguish between protests of contract awards and protests of task or delivery orders, as discussed more fully below.

In 1994, Congress enacted the Federal Acquisition Streamlining Act (FASA), which, as relevant here, provided statutory guidance for the award of ID/IQ contracts. See Pub. L. No. 103-355, 108 Stat. 3243 (1994) (codified in Titles 10 and 41 of the U.S. Code). FASA also amended CICA by limiting the jurisdiction of our Office with respect to protests of task or delivery orders placed under ID/IQ contracts under both Title 10 and Title 41 of the U.S. Code. FASA's bar on protests of orders applicable to ID/IQ contracts under Title 41 read as follows:

(e) Protests.--

A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.

Id. 108 Stat. at 3264 (codified at 41 U.S.C. sect. 253j (1994)). In other words, after 1994, protests over task or delivery orders were barred unless these protests alleged that the order increased the scope, period, or maximum value of the underlying contract through which the orders were issued.

In 2008, Congress modified FASA's bar on protests of task or delivery orders with the passage of the National Defense Authorization Act (NDAA). See Pub. L. No. 110‑181, 122 Stat. 3 (2008). As relevant here, the 2008 NDAA amended FASA (which in turn, had amended CICA) by "striking subsection (e)," and "inserting the following new subsection (e)":

(e) Protests.--

(1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for--

(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

(B) a protest of an order valued in excess of $10,000,000.

(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

(3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.

Id. 122 Stat. at 237 (codified at 41 U.S.C. sect. 253j(e) (2006 & Supp. III 2009)).

The 2008 NDAA amendment, in essence, expanded the jurisdiction of our Office under FASA to include protests of task or delivery orders valued in excess of $10 million. 41 U.S.C. sect. 253j(e)(2). The NDAA also contained a sunset provision, which stated that the "subsection shall be in effect for three years." Id. sect. 253j(e)(3). The sunset took effect after May  27, 2011--4 days after this protest was filed.

In our view, the sunset provision in 41 U.S.C. sect. 253j(e)(3) applies to the entirety of subsection 253j(e). As a result, the entirety of subsection 253j(e) has no effect--including both the bar on task order protests under FASA, and the exceptions to that bar under FASA, and the 2008 NDAA. Accordingly, GAO's jurisdiction reverts to that originally provided in CICA.

Our view of the sunset provision is based on the plain meaning of the text of the 2008 NDAA. The starting point of any analysis of the meaning of a statutory provision is the language used by Congress. International Program Grp., Inc., B-400278, B-400308, Sept. 19, 2008, 2008 CPD para. 172 at 4 (citing Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1990)). Where, as here, the language of a statute is clear on its face, its plain meaning will be given effect. Carcieri v. Salazar, 555 U.S. 379, 129 S. Ct. 1058, 1063-64 (2009); see also Mission Critical Solutions, B‑401057, May 4, 2009, 2009 CPD para. 93 at 3-8 (applying plain meaning of Small Business Act), recon. denied, Small Business Admin.-Recon., B-401057.2, July 6, 2009, 2009 CPD para. 148 at 5 (same).

Here, the plain meaning of the sunset provision unambiguously refers to the whole of subsection 253j(e). As discussed above, the 2008 NDAA struck the prior "subsection" added by FASA in its entirety and replaced it with "new subsection (e)." Pub. L. No. 110-181, 122 Stat. 3, 237 (2008). The revised subsection (e) stated that "[t]his subsection shall be in effect for three years." Id.; 41 U.S.C. sect. 253j(e)(3). Thus, upon operation of the sunset provision on May 27, 2011, the entire subsection, i.e., 41 U.S.C. sect. 253j(e), no longer has effect.

As a result of the sunset of 41 U.S.C. sect. 253j(e), the jurisdiction of our Office over protests of task or delivery orders has, effectively, reverted to the jurisdiction we had under CICA, prior to its amendment by FASA. As mentioned above, prior to FASA, our Office's statutory authority under CICA to hear protests did not distinguish between protests of contracts, and protests of task or delivery orders. Consistent with this authority, our Office heard protests prior to the passage of FASA concerning the issuance of task or delivery orders, including challenges to orders that exceeded the scope of the underlying ID/IQ contract, as well as protests that did not involve challenges to scope.[4] See, e.g., Astronautics Corp. of Am., B-242782, June 5, 1991, 91-1 CPD para. 531 (challenge to scope of task order issued under a multiple-award ID/IQ contract); Computer Scis. Corp., B-213287, Aug. 6, 1984, 84‑2 CPD para. 151 (non-scope challenge to competitive task order issued under ID/IQ contract); Nautica Int'l Inc., B-254428, Dec. 15, 1993, 93-2 CPD para. 321 (non-scope challenge to order issued under the Federal Supply Schedule); Integrated Sys. Grp., Inc., B-246447, Mar. 9, 1992, 92-1 CPD para. 268 (same); Diversified Comp. Consultants, Inc., B-241764, Feb. 27, 1991, 91-1 CPD para. 224 (same); AZTEK, Inc., B-236612, Dec. 6, 1989, 89-2 CPD para. 521 (same).

In sum, the plain meaning of 41 U.S.C. sect. 253j(e)(3) eliminates any bar to our jurisdiction to hear and issue decisions concerning bid protests arising from task or delivery orders of any value. For this reason, we conclude that we have jurisdiction over the task order protest here.

Effective Date of the Sunset Provision

Even if we were to view the sunset provision as barring our jurisdiction as of May 27, 2011, as DISA argues, it would not end our jurisdiction to complete our review of protests filed with our Office prior to the effective date of the sunset on May 27, 2011. In other words, even if we were to agree with DISA concerning the general effect of the sunset provision, we would not view the sunset as affecting pending protests.

As noted above, 41 U.S.C. sect. 253j(e)(1), added to CICA by FASA and amended by the 2008 NDAA, stated that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except" for the identified exceptions. (Emphasis added.) CICA defines a "protest" as a "written objection by an interested party" to a solicitation, or the award or proposed award of a contract. 31 U.S.C. sect. 3551 (2006). CICA further states that "[a] protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General if filed in accordance with this subchapter." Id. sect. 3552(a). That is, CICA's definitions of "protest" are based on the filing of a written objection. Thus, reading the 2008 NDAA amendment to CICA in conjunction with CICA's protest definition, we think that the prohibition of protests in the 2008 NDAA, which states that "[a] protest is not authorized," can only be reasonably interpreted as meaning a protest may not be filed.

Moreover, a conclusion that the sunset provision applies to protests filed prior to the sunset date would require us to give retroactive effect to the sunset provision. In the absence of statutory direction, however, retroactivity is not favored by the law. KPMG Peat Marwick, LLP--Costs, B-259479, July 25, 1996, 96-2 CPD para. 43 at 4 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988); OAO Corp. v. Johnson, 49 F.3d 721 (Fed. Cir. 1995)). Thus, in the absence of such an express statement, we do not view the sunset provision as applying to pending protests even assuming arguendo that the sunset terminates GAO's jurisdiction.

In sum, we conclude that our Office has jurisdiction to complete our review of protests concerning the issuance of task orders that were filed prior to May 27, 2011, including the order challenged here by Technatomy.  (Technatomy Corporation, B-405130, June 14, 2011) (pdf)

LaBarge argues that our Office has jurisdiction to hear this protest because the delivery order issued to DRS is outside the scope of the underlying indefinite-delivery/indefinite-quantity (ID/IQ) contract. The protester points to the solicitation for the underlying ID/IQ contract for fuel and water pump assemblies, solicitation No. W56HZV-09-R-0461, and argues that the solicitation did not notify protesters that the pump assemblies would be used in connection with the Assault Hoseline System; the protester argues that this system imposes additional requirements for the parts, and contends that these additional requirements are not found in the underlying ID/IQ contract. LaBarge requests that our Office recommend that the agency terminate DRS's order, and issue the order to LaBarge, since LaBarge is, in its view, the only supplier of pumps that meet the agency's requirements. Protest at 6.

When a protester alleges that an order is outside the scope of the contract, we analyze the protest in essentially the same manner as those in which the protester argues that a contract modification is outside the scope of the underlying contract. The fundamental issue is whether issuance of the task or delivery order, in effect, circumvents the general statutory requirement under the Competition in Contracting Act of 1984 (CICA) that agencies "obtain full and open competition through the use of competitive procedures" when procuring their requirements. See 10 U.S.C. sect. 2304(a)(1)(A) (2000); see Anteon Corp., B‑293523, B-293523.2, Mar. 29, 2004, 2004 CPD para. 51 at 4-5. In determining whether a task or delivery order (or modification) is outside the scope of the underlying contract, and thus falls within CICA's competition requirement, our Office examines whether the order is materially different from the original contract. See Specialty Marine, Inc., B-293871, B-293871.2, June 17, 2004, 2004 CPD para. 130 at 4.

Although LaBarge cites our decision in Specialty Marine in support of its arguments that its protest here concerns a matter of scope, the protester fails to recognize that our concern in scope cases is not for aggrieved competitors for the issuance of an order (that is, current holders of an ID/IQ contract under which the orders were issued). Rather, our concern was whether the issuance of an order would circumvent the competition requirements of CICA and deprive other entities--that did not compete for and receive one of the underlying contracts--of an opportunity to compete for what was, in essence, a new procurement. See, e.g., LBM, Inc., B‑290682, Sept. 18, 2002, 2002 CPD para. 157 at 5-7.

In contrast, LaBarge is concerned with whether the agency has properly issued a delivery order to DRS, rather than LaBarge. Thus, although LaBarge has framed its arguments as raising a question about the scope of the contract, the crux of its protest concerns the agency's evaluation of the competing quotes. Because the value of the delivery order is below $10 million, we do not have authority to review the issuance of this order.  (LaBarge Products, Inc., B-402280, January 19, 2010)  (pdf)

This protest involves the issuance of a task order. Our jurisdiction to consider protests of orders issued under task or delivery order contracts is limited to protests where the order is valued over $10 million, or where the protester can show that the order exceeds the scope, term, or maximum value of the task or delivery order contract. 41 U.S.C.A sections 253j(e), (g), 253k(1) (West 2009); e.g., e‑Management Consultants, Inc.; Centech Group, Inc., B‑400585.2, B-400585.3, Feb. 3, 2009, 2009 CPD para. 39 at 6; see also Armorworks Enters., LLC, B-401671.3, Nov. 6, 2009, 2009 CPD para. 225 at 3 (protest dismissed where agency issued orders valued under $10 million under a delivery order contract).

In reviewing the agency report, our Office noted that the task order at issue had been issued under the terms of another contract vehicle, the FERM BPA, and the task order itself was clearly valued under $10 million. Since the agency report did not contain a copy of a FERM BPA, and the terminology used in the agency report was not precise, we asked the Forest Service to provide additional documentation about the FERM BPA, and invited both parties to submit additional briefs. Based on information produced by the Forest Service, the relevant facts regarding our jurisdiction follow.

The FERM BPAs were established pursuant to request for quotations (RFQ) No. AG‑04N0‑S‑09‑0004, which was issued by the Forest Service on May 6, 2009. The FERM RFQ requested quotations to provide 13 types of forest engineering and road maintenance services, including stream restoration and rehabilitation services, across 11 geographic areas in Oregon. FERM RFQ at 2. In addition to providing a price quotation for the relevant line items, the FERM RFQ instructed vendors to submit a technical statement, a "benefit to local community" statement, and past performance information. FERM RFQ at 53-55.

The FERM RFQ emphasized that the procurement was expected to conclude with the establishment of multiple BPAs, and expressly stated that no contracts would be awarded. FERM RFQ at 15. Consistent with this approach, the FERM RFQ did not include a guaranteed minimum quantity, although the RFQ did specify an annual ceiling amount of $1 million per vendor.

After the Forest Service evaluated quotations from numerous vendors, including both Aquatic and C&B, the agency established FERM BPAs with 43 vendors. The BPAs established with Aquatic and C&B included the services relevant here: stream restoration and rehabilitation services within Area 1.

In response to our inquiry, the Forest Service now argues that our Office does not have jurisdiction to consider this protest because the FERM BPA is functionally equivalent to a task order contract, and the value of the task order is less than $10 million. We disagree.

In order for the task order protest bar to apply, there must be a task or delivery order contract pursuant to which the order is being placed. A task order contract for purposes of 41 U.S.C. sect. 253j--the section that sets forth the limitation of our jurisdiction to hear protests challenging the issuance of task or delivery orders under such contracts--is defined as

a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract.

41 U.S.C. sect. 253k(1) (2006).

To be an enforceable contract, an indefinite-delivery/indefinite-quantity task or delivery order contract must require the government to order, and the contractor to furnish, at least a stated minimum quantity of supplies or services. Federal Acquisition Regulation (FAR) sect. 16.504(a)(1). Additionally, to ensure that the contract is binding, the minimum quantity must be more than a nominal quantity, but should not exceed the amount that the government is fairly certain to order. FAR sect. 16.504(a)(2). Information Ventures, Inc., B-299255, Mar. 19, 2007, 2007 CPD para. 80 at 6.

In contrast, a BPA is generally not a contract, and a BPA does not obligate the agency to enter into future contracts with the vendor. FAR sect. 13.303-1(a); see also Logan, LLC, B-294974.6, Dec. 1, 2006, 2006 CPD para. 188 at 2-3 n.2. Here there is no underlying task order contract; the task order is being placed under a BPA.

Since GAO's jurisdiction at 41 U.S.C. sect. 253j(e) to consider protests of task orders is limited with respect to task orders under task or delivery order contracts, and since a BPA is not a contract, we have no basis to dismiss C&B's challenge for lack of jurisdiction. See, e.g., Envirosolve LLC, B‑294974.4, June 8, 2005, 2005 CPD para. 106 at 7-8 (sustaining protest against orders placed under multiple-award BPAs where orders were valued under $100,000).  (C&B Construction, Inc., B-401988.2, January 6, 2010) (pdf)

As a preliminary matter, the Navy argues that we should dismiss ESCO’s protest for lack of jurisdiction because the task order issued to ISL is in the amount of $.06 and our jurisdiction to review task order protests is limited to those valued in excess of $10 million (except under certain limited circumstances not applicable here). ESCO disagrees, arguing that our Office has jurisdiction because the value of the task order should include consideration of the ship scrap values, which both offerors estimated to be in excess of $13 million and which offerors were required to factor into their proposed prices.

The Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, sect. 1004, 108 Stat. 3243, 3252-53 (1994), codified at 10 U.S.C. sect. 2304(c) (2006), provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” However, section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA), Pub. L. No. 110-181, 122 Stat. 3, 236-39 (2008) (to be codified at 10 U.S.C. sect. 2304c(e)) modified FASA’s prior limitations on task order protests. Specifically, the NDAA provides that, in addition to previously permitted task order protests, a protest is also authorized with regard to “an order valued in excess of $10,000,000.” 122 Stat. 237 (to be codified at 10 U.S.C. sect. 2304c(e)(1)).

Here, the protester does not allege that the task order will exceed the scope, period, or maximum value of the underlying ID/IQ contract. Nor is there any dispute that offerors’ proposed prices for the task order are less than $10 million, while the sum of each offeror’s price and estimated scrap value was, in both instances, in excess of $10 million. Rather, the determination of GAO’s jurisdiction turns on the meaning of the term “valued” as used in the NDAA.

In matters concerning the interpretation of a statute, the first question is whether the statutory language provides an unambiguous expression of the intent of Congress. If it does, then the matter ends there, for the unambiguous intent of Congress must be given full effect. Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992) (when the words of a statute are unambiguous, the judicial inquiry is complete); Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997) (when the statutory language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case, the judicial inquiry must cease). It is a fundamental canon of statutory construction that words, unless otherwise defined by the statute, will be interpreted consistent with their ordinary, contemporary, common meaning. State of California v. Montrose Chem. Corp., 104 F.3d 1507, 1519 (9th Cir. 1997); GAO, Principles of Federal Appropriations Law, vol. 1, at 2-89 (3d ed. 2004); see Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 301 (1989).

The NDAA provision at issue here extends GAO’s jurisdiction to protests involving the issuance of task orders of a certain size--those “valued” in excess of $10 million. However, neither the language of the statute nor the legislative history of the NDAA defines the term “valued.” Without specific definitions to guide our review, we look to the plain meaning of the word used in the statute.

The ordinary and commonly understood meaning of the term “value” is “a fair return or equivalent in goods, services, or money for something exchanged,” Merriam-Webster’s Dictionary (http://www.merriam-webster.com/dictionary/value), or “an amount, as of goods, services, or money, considered to be a fair and suitable equivalent for something else.” The American Heritage Dictionary of the English Language (4th ed. 2004). As explained below, while an order’s “value” often may be synonymous with its price, under the procurement scheme here, we think it is proper to take into account the estimated scrap values when determining the “value” of the task order in question.

As set forth above, the provisions of the underlying ID/IQ contracts require the contractor to sell or dispose of any scrap or reusable equipment/material removed from the ship as part of the dismantling efforts. Further, the contractor was to retain the proceeds of the scrap sales. Accordingly, the contractors were required to factor estimated proceeds from scrap sales into their task order prices for towing and dismantling services. Specifically, the contracts state that “[t]he contractor shall use the [scrap] sale proceeds to offset the price or cost of work covered by this contract,” and that “[t]he Contractor shall retain proceeds from the sale of scrap and reusable equipment/material from the vessel being dismantled . . . and shall apply them to the cost of performance of the contract.” AR, Tab 1, ISL Contract, sections B, C.4.2; Tab 2, ESCO Contract, sections B, C.4.2.

The terms and procedures of the ID/IQ contracts here implement the provisions of 10 U.S.C. sect. 7305a, Vessels stricken from Naval Vessel Register: contracts for dismantling on net-cost basis, which states:

(a) Authority for net-cost basis contracts. When the Secretary of the Navy awards a contract for the dismantling of a vessel stricken from the Naval Vessel Register, the Secretary may award the contract on a net-cost basis.

(b) Retention by contractor of proceeds of sale of scrap and reusable items. When the Secretary awards a contract on a net-cost basis under subsection (a), the Secretary shall provide in the contract that the contractor may retain the proceeds from the sale of scrap and reusable items removed from the vessel dismantled under the contract.

(c) Definitions. In this section:

(1) The term “net-cost basis”, with respect to a contract for the dismantling of a vessel, means that the amount to be paid to the contractor under the contract for dismantling and for removal and disposal of hazardous waste material is discounted by the offeror’s estimate of the value of scrap and reusable items that the contractor will remove from the vessel during performance of the contract. . . .

10 U.S.C. sect. 7305a.

The ID/IQ contracts awarded to both ISL and ESCO also contain Federal Acquisition Regulation (FAR) clause sect. 52.245-2, Government Property (Fixed-Price Contracts) (May 2004), which states in relevant part that “[t]he contractor shall credit the net proceeds from the disposal of Government property to the price or cost of work covered by this contract or to the Government as the Contracting Officer directs.” FAR sect. 52.245-2(i)(9).

The task order issued here essentially provides the contractor with two different forms of payment for the towing and dismantling services being supplied to the Navy: 1) payment in appropriated funds (i.e., the price); and 2) payment-in-kind (i.e., the right to keep the scrap sale proceeds). As evidenced by their proposals, both ESCO and ISL valued the payment-in-kind at more than $13 million. In fact, the only reason the Navy received the prices that it did from ISL and ESCO was because of the additional $13 million in payments-in-kind that the contractor would receive as part of the task order. Under the payment scheme contemplated by the applicable statute and the ID/IQ contracts themselves, we think that the price of the task order does not represent the task order’s entire value, and that consideration of the estimated scrap value is also necessary to determine the task order’s value.

As the “value” of the task order here, as measured by sum of ISL’s price and estimated scrap value proceeds, is in excess of $10 million, we conclude that we have jurisdiction to review ESCO’s protest of the task order issued to ISL.  (ESCO Marine, Inc., B-401438, September 4, 2009)  (pdf)

On September 9, Armorworks, one of the ID/IQ contract holders, protested the terms of the RFQs, arguing that it was improper to split the requirement for the plates into three separate RFQs by size. According to Armorworks, no body armor requirement has ever been divided this way in the past. Rather, Armorworks asserts, SAPI plates are always ordered in combined groups of small, medium, and large, so that when they are delivered to the users, there is no risk that soldiers of one particular size--small, medium, or large--will be left without protection. In addition, Armorworks maintains that the agency should have "set these procurements aside for small business, in whole or in part." Protest at 2.

The agency responded by asserting that our Office does not have jurisdiction over the protest challenging the RFQs because each RFQ concerns the award of a separate delivery order with an estimated value of less than $10 million, the statutory threshold for our Office's task and delivery order protest jurisdiction. We agree.

This Office's authority to consider task and delivery order protests was recently expanded by section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA). In this regard, the NDAA authorizes this Office to consider protests filed in connection with task orders that are valued in excess of $10 million. Pub. L. No. 110-181, 122 Stat. 3, 239 (2008).

There is no dispute that each of the contemplated delivery orders is valued at less than $10 million. Rather, Armorworks argues that our Office should consider the RFQs as reflecting a single requirement with a combined value of $21 million. In this regard, Armorworks contends that the agency's decision to divide the plates into three separate delivery orders was essentially a pretext, designed to avoid the $10 million threshold and thereby avoid the protest jurisdiction of our Office. Armorworks reaches this conclusion based on the fact that dividing the orders by plate size is allegedly without precedent, coupled with its belief that such a division is "irrationally dangerous to troops and morale." Protester's Response to Agency's Memorandum, at 4.

Fundamentally, Armorworks' pretext argument is premised on the notion that the agency's decision to separately procure the plates by size was made in bad faith. Government officials are presumed to act in good faith, Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 4, and we will not aggregate separate task or delivery orders in connection with a multiple-award ID/IQ contract, for the purpose of establishing the $10 million jurisdictional threshold, absent a clear showing that the agency's decision to issue separate orders was made solely to evade our protest jurisdiction.

Here, the record does not support a finding that the agency's decision to separately order its plates by size was a pretext as Armorworks suggests. Rather, the agency has explained that it divided the requirements into three separate orders according to size based on its understanding that contractors' SAPI production lines are established for a particular size; issuing separate delivery orders for the SAPIs by size, the agency reasoned, would allow prospective contractors to focus on making only one size. This in turn would encourage more contractors to compete and thereby help ensure that all of the urgently needed items would be provided within the short 90-day timeframe for delivery. Agency Memorandum, Sept. 10, 2009. Given the agency's rationale for separating the orders by plate size, we have no basis to conclude that the agency's decision to issue three separate task orders was a pretext, that is, a deliberate effort to evade our protest jurisdiction. Accordingly, because each RFQ is for a delivery order which is valued at less than $10 million, our Office does not have jurisdiction to hear Armorworks' protest of the RFQs.  (Armorworks Enterprises, LLC, B-401671.3,November 6, 2009) (pdf)

As a preliminary matter, the agency asserts that this Office is not authorized to consider the issues raised in the protests due to the limitations of the Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C. sect. 2304c (2006).[12] However, as discussed below, this Office's consideration of the protest issues is authorized by the recent enactment of section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 236-39 (2008), which modified FASA's prior limitations on task order protests. Specifically, the NDAA provides that protests of task order awards are not authorized "except for . . . a protest of an order valued in excess of $10,000,000." 122 Stat. 237.

The agency acknowledges that the NDAA not only modified FASA's prior limitations on protests, but further, in order to meet the "fair opportunity to be considered" requirements, the NDAA requires that, for orders in excess of $5,000,000, procuring agencies must, among other things: (1) provide potential competitors with a clear statement of the agency's requirements; (2) disclose the significant factors and subfactors, along with their relative importance, that the agency expects to consider; and (3) provide a written statement documenting the basis for the task order award where, as here, award is to be made on a "best value" basis. Id. The agency further acknowledges that the NDAA authorizes protests challenging an agency's failure to comply with these "fair opportunity to be considered" requirements. Army's Legal Memorandum (DTA 2) at 9.

Nevertheless, the agency maintains that GAO is only permitted to review whether the "process" for issuing task orders is followed--that is, whether solicitations identify the agency's requirements, whether solicitations contain evaluation criteria, and whether best value award decisions are documented; GAO is not permitted to review the agency's "judgments" or otherwise review the reasonableness of the agency's evaluation and award decision. Army's Legal Memorandum (DTA 2) at 4. Thus, the agency asserts that although the NDAA's provisions permit a protester to challenge an agency's failure to inform offerors regarding the ground rules under which a task order competition will be conducted, it does not authorize a protest that challenges the agency's failure to actually follow those rules.

We reject the agency's arguments. Initially, as noted above, the NDAA authorizes "a protest of an order valued in excess of $10,000,000." 12 Stat. 237. The Competition in Contracting Act of 1984 (CICA), as modified by FASA, specifically defines the term "protest," as follows:

The term "protest" means a written objection by an interested party to any of the following:

(A) A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.

(B) The cancellation of such a solicitation or other request.

(C) An award or proposed award of such a contract.

(D) A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.
31 U.S.C. sect. 3551(1) (2000).

In the context of CICA and FASA, and our Office's well-established practices and procedures employed to implement the protest jurisdiction conferred by those statutes, we view the NDAA's authorization to consider "a protest of an order valued in excess of $10,000,000" as providing the same substantive protest jurisdiction conferred by those statutes. In this regard, we find no basis to conclude that, in enacting the NDAA and authorizing certain task order protests, Congress intended to establish a system under which an agency is obligated to advise offerors of the bases for task order competition, and enforces that requirement through authorization of bid protests, but which provides no similar enforcement authority to ensure that agencies actually act in accordance with the guidance they are required to provide to offerors. Rather, consistent with this Office's past practice and CICA's provisions that define a protest as an "objection . . . to . . . an award or proposed award," we view the NDAA's authorization to consider protests of task orders in excess of $10,000,000 as extending to protests asserting that an agency's award decision failed to reasonably reflect the ground rules established for the task order competition. Accordingly, our review of the protests here includes our assessment of whether the agency's source selection decisions were reasonably consistent with the terms of the solicitation and applicable procurement laws and regulations. Triple Canopy, Inc., B-310566.4, Oct. 30, 2008, 2008 CPD para. __ at 5-7.  (Bay Area Travel, Inc.; Cruise Ventures, Inc.; Tzell-AirTrak Travel, B-400442; B-400442.2; B-400442.3; B-400547; B-400547.2; B-400547.3; B‑400564; B-400564.2; B-400564.3, November 5, 2008) (pdf)

Next, with regard to Centech's protest challenging the agency's interim issuance of a task order to Bowhead, this Office is not authorized to consider the matter. Specifically, the Federal Acquisition Streamlining Act of 1994 (FASA) provides that this Office is authorized to consider task order protests only under limited circumstances, stating:

A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.

41 U.S.C. sect. 253j(d) (2008).

This Office's authority to consider task order protests was recently expanded by section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA). In this regard, the NDAA authorizes this Office, in addition to the circumstances identified above, to consider protests filed in connection with task orders that are valued in excess of $10 million. Pub. L. 110-181, 122 Stat. 3, 239 (2008).

Here, Centech's protest does not allege that the task order issued to Bowhead increased the scope, period, or maximum value of the contract against which the order was issued. Further, the record is undisputed that the value of the task order is less than $10 million. Accordingly, pursuant to the statutory limitations discussed above, this Office is not authorized to consider Centech's protest challenging the agency's issuance of an interim task order to Bowhead.  (e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009)  (pdf)

As a preliminary matter, the agency asserts that this Office is not authorized to consider the issues raised in Triple Canopy’s protest due to the protest limitations previously imposed by the Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C. § 2304(c)(2000). As discussed below, this Office’s consideration of the various issues raised by Triple Canopy is authorized by section 843 of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 236-39 (2008), which modified the prior FASA limitations regarding permissible protests. Specifically, the NDAA provides that, in addition to previously permitted task order protests, a protest is authorized with regard to “an order valued in excess of $10,000,000.” 122 Stat. 237.

The agency acknowledges that the NDAA not only modifies FASA’s prior limitations on protests, but further, in order to meet the “fair opportunity to be considered” requirements, the NDAA requires that, for orders in excess of $5,000,000, procuring agencies must provide ID/IQ contract holders with specific information regarding the bases for pending task order competitions. The agency further acknowledges that the NDAA authorizes protests challenging an agency’s failure to comply with these “fair opportunity to be considered” requirements. Agency Legal Memorandum, Sept. 2, 2008, at 12.

Nonetheless, the agency maintains that, while task order contractors are “entitled to receive the information [regarding the bases for competitions],” and may protest the agency’s failure to provide such information, contractors are “not entitle[d] . . . to challenge the merits of the award determination.” Id. at 14. That is, the agency asserts that while the NDAA’s provisions permit a protester to challenge an agency’s failure to inform offerors regarding the ground rules under which a task order competition will be conducted--it does not authorize a protest that challenges the agency’s failure to actually follow those rules.  (Triple Canopy, Inc., B-310566.4, October 30, 2008) (pdf)

We reject the agency’s arguments. Initially, as noted above, the NDAA authorizes “a protest of an order valued in excess of $10,000,000.” 122 Stat. 237. The Competition in Contracting Act of 1984 (CICA), as modified by FASA, specifically defines the term “protest,” stating:

The term “protest” means a written objection by an interested party to any of
the following:

(A) A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.
(B) The cancellation of such a solicitation or other request.
(C) An award or proposed award of such a contract.
(D) A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

31 U.S.C. § 3551(1)(2000).

In the context of CICA and FASA, along with this Office’s well-established practices and procedures employed to implement the protest jurisdiction conferred by those statutes, we view the NDAA’s authorization to consider “a protest of an order valued in excess of $10,000,000” as providing the same substantive protest jurisdiction conferred by those statutes. In this regard, we find no basis to conclude that, in enacting the NDAA and authorizing certain task order protests, Congress intended to establish a system that requires agencies to advise offerors of the bases for task order competitions, and enforces that requirement through authorization of bid protests--but provides no similar enforcement authority to ensure that agencies actually act in accordance with the guidance they are required to provide to offerors. Rather, consistent with this Office’s past practice, and CICA’s provisions that define a protest as an “objection . . . to . . . an award or proposed award,” we view the NDAA’s authorization to consider protests of task orders in excess of $10 million as extending to protests asserting that an agency’s award decision failed to reasonably reflect the ground rules established for the task order competition. Accordingly, our review of Triple Canopy’s protest includes consideration of whether the agency’s source selection decision was reasonably consistent with the terms of the underlying solicitation and applicable procurement laws and regulations.  (Triple Canopy, Inc., B-310566.4, October 30, 2008)  (pdf)

GCE’s protest raises various challenges to the Coast Guard’s decision to modify the SETS II task order to include federal financial IT support services. The protester principally argues that the services are beyond the scope of the SETS II task order and should have been separately and competitively procured. In support of its position, the protester argues that the federal financial IT support services are materially different from those in the statement of work in the original SETS II task order. Importantly, GCE does not argue that the task order modifications here are beyond the scope of the ITOP II ID/IQ contract. GCE also protests that the agency’s decision to modify QSS’s SETS II task order violated the Small Business Act by improperly bundling work requirements that had previously been performed by separate small business concerns. Protest, Nov. 16, 2007, at 11-13; Protest, Jan. 9, 2008, at 2, 29-30. For the reasons set forth below, we conclude that we do not have jurisdiction to consider GCE’s challenges and, therefore, we dismiss the protest. Our Office is generally precluded from considering protests challenging the issuance of task or delivery orders under ID/IQ contracts. In this regard, the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, sect. 1004, 108 Stat. 3243, 3252-53 (1994), codified at 41 U.S.C. sect. 253j(d) (2000), provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” Here, GCE does not allege that the modifications issued by the Coast Guard adding federal financial IT support services increase the scope, period, or maximum value of the ITOP II ID/IQ contract; rather, the protester asserts only that the modifications at issue are outside the scope of the SETS II task order. Accordingly, as GCE’s protest here does not fit within the exceptions provided in the statute, we lack jurisdiction to review the matter. See Cartographics, LLC, B-297121, Nov. 15, 2005, 2005 CPD para. 207 at 2; United Info. Sys., Inc., B-282895, B-282896, June 22, 1999, 99-1 CPD para. 115 at 1-2. GCE does not dispute that its protest is premised on the assertion that the modifications regarding federal financial IT support services are beyond the scope of the SETS II task order. Instead, the protester argues that consideration of its protest here is not statutorily precluded. Specifically, GCE argues that the express language of FASA refers to and prohibits two types of protests: 1) those involving the proposed issuance of task and delivery orders; and 2) those involving the issuance of original task and delivery orders. GCE Comments, Jan. 18, 2008, at 5 (emphasis added). By contrast, the modification of an existing task order, GCE maintains, involves neither the issuance nor the proposed issuance of a task order and is, therefore, not barred from protest. GCE argues that Congress did not intend the FASA bar on protests to encompass task order modifications: the statute does not mention task order modifications, and if Congress had intended the statute to apply as well to task order modifications, it would have added specific language to this effect. Id.

We recognize that the FASA protest bar does not expressly address the issue of modifications of task and delivery orders issued under ID/IQ contracts. We think, however, that the restriction on protests of orders placed under a task order contract as contained in 41 U.S.C. sect. 253j(d) also applies here. Congress passed FASA as part of an effort to reform federal procurement activities “by greatly streamlining and simplifying [the federal government’s] buying practices.” 140 Cong. Rec. H9240, H9240 (1994) (statement of Rep. Conyers). Bid protests were one area targeted by FASA for reform. In particular, FASA established that, when agencies utilize ID/IQ contracts--with a statutory preference for the use of multiple-award ID/IQ contracts, thereby creating a competitive pool of contractors for individual work projects--the issuance of individual task and delivery orders to these contractors would not be subject to protests. The intent of Congress “was to [generally] exempt from protest the issuance of individual task orders to contractors who had already received awards, subject to protest, of their master ID/IQ contracts.” A & D Fire Protection Inc. v. U.S., 72 Fed. Cl. 126, 134 (2006). The protester essentially argues that although protests regarding an agency’s issuance of task orders under ID/IQ contracts are precluded, protests regarding an agency’s modification of such task orders are permitted. We find this position to be inconsistent with both the language of FASA and the underlying congressional intent. Moreover, we see no logic in holding that an agency’s decision to modify an existing task order could be subject to protest when it is clear that an agency’s decision to perform the very same action by means of a new task order would not be subject to protest; that is, had the Coast Guard issued a separate task order to QSS for federal financial IT support services rather than modifying the existing SETS II task order, it is undisputed that this action would not be subject to protest. In our view, accepting GCE’s position--which would permit protests regarding task order modifications but not the task orders themselves--would elevate form over substance. In sum, we conclude that FASA’s bar on protests in connection with the issuance or proposed issuance of task orders encompasses protests concerning the issuance or proposed issuance of task order modifications.  (Global Computer Enterprises, Inc., B-310823; B-310823.2; B-310823.4, January 31, 2008) (pdf)

Where a solicitation for an ID/IQ contract contemplates only a single competitive source selection for specific items, based on the proposals submitted in response to the RFP, and is not for work to be assigned based on further competitions among the awardees, we have found that 10 U.S.C. § 2304c(d) does not preclude our bid protest jurisdiction by virtue of the implementation of these source selections by the issuance of task or delivery orders.  Teledyne-Commodore, LLC--Recon., B‑278408.4, Nov. 23, 1998, 98-2 CPD ¶ 121 at 3-4; Electro-Voice, Inc., B-278319, B-278319.2, Jan. 15, 1998, 98-1 CPD ¶ 23 at 5.  As discussed in detail below, that is precisely the situation here, where the RFP contemplated that awards for the CLINs for existing INMARSAT services would be based on the proposals, including the pricing, submitted in response to the RFP and would not be based on further competitions among the awardees of the ID/IQ contracts under this RFP.  (Global Communications Solutions, Inc., B-291113, November 15, 2002)

We agree with LBM that the limitation on our bid protest jurisdiction in 10 U.S.C. S: 2304c(d) does not apply here. Contrary to the Army's arguments, LBM is not challenging the proposed issuance of a task order for these services, but is raising the question of whether work that had been previously set aside exclusively for small businesses could be transferred to LOGJAMSS, without regard to the Federal Acquisition Regulation (FAR) S: 19.502-2(b) requirements pertaining to small business set-asides. This is a challenge to the terms of the underlying LOGJAMSS solicitation and is within our bid protest jurisdiction. See N&N Travel & Tours, Inc. et al., B-285164.2, B-285164.3, Aug. 31, 2000, 2000 CPD P: 146 at 6. In our view, the limitation on our bid protest jurisdiction was not intended to, and does not, preclude protests that timely challenge the transfer and inclusion of work in ID/IQ contracts without complying with applicable laws or regulations, but was to preclude protests in connection with the actual or proposed issuance of an individual task or delivery orders under those contracts. This view is consistent with the legislative history to this particular section, which was enacted in the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, 108 Stat. 3243, 3253.  (LBM, Inc., B-290682, September 18, 2002)  (pdf)

Protest that contracting agency improperly proposes to issue a task order under an indefinite-delivery/indefinite-quantity contract is dismissed pursuant to 10 U.S.C. sect. 2304c(d) (1994), which provides that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued," where the enumerated exceptions do not apply.  (Hospital Klean, Inc., B-286791, December 8, 2000)

Protests alleging that contracting agency improperly evaluated protester's proposals submitted in response to solicitations issued pursuant to indefinite-quantity, indefinite-delivery contract are dismissed pursuant to 41 U.S.C. sect. 253j(d) (1994), which provides that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued," where the enumerated exceptions do not apply.  (United Information Systems, Inc., B-282895; B-282896, June 22, 1999)